in the limitations prescribed, there is to be a meeting of the family (conseil de famille) for the nomination of a guardian. The family council is composed of six relations, half from the paternal, and half from the maternal line, and the provision is very specific in its details. This provision has been incorporated, with some small variations, into the civil code of Louisiana.a

estates. It would be tempting trustees to keep in hand, for their own speculation and profit, the interest moneys of others without interest, contrary to their duty. If a trustee might go and trade with trust moneys, and make no account of the profits, and without any other penalty than the payment of simple interest, without annual rests, on the capital so corruptly perverted, the temptation to abuse would be irresistible. Such men ought to be dealt by the plain but wholesome rules of Lord Eldon; and the legal responsibilities of trustees, as laid down in the text, is correctly stated. This doctrine has recently received the powerful sanction of the Supreme Court of Pennsylvania, in the opinion delivered by the chief justice, in the case of Harland's Accounts, 5 Rawle's Rep. The cases, both foreign and domestic, are in this opinion examined, and the argument in favour of the allowance of annual rests, or compound interest, when the trustee, be he executor, administrator, guardian or other trustee, grossly disregards his duty, is conclusively stated, and it applies to those cases in which such an allowance becomes necessary to place the cestui que trust, in the condition in which a conscientious discharge of the trust would have placed him. See infra, p. 630, note. In the English equity court, it seems to be unsettled what shall be the mode and extent of the responsibility of trustees, where they are directed to invest trust moneys in the public stocks or in real security, and they do neither. Sir John Leach, the Vice-Chancellor, in Marsh v. Hunter, 6 Madd. & Gel. 295, held, that they should be answerable for the principal money only, and not for the amount of stock which might have been purchased. But, in Hockley v. Bantock, in 1 Russ. 141, Lord Gifford, the master of the rolls, held differently, and that the trustees were answerable in a way the most beneficial to the cestui que trust, and at his option, either for the money or the stock which might have been purchased. Lord Langdale, the master of the rolls, in Watts v. Girdlestone, 6 Beav. 188, adopted the same principle of compensation. But, again, in Shepherd v. Mould, 4 Hare, 500, Sir James Wigram, the Vice-Chancellor, adopted the precedent established by Sir John Leach, in Marsh v. Hunter.

• Code Civil, book 1. tit. 10. Civil Code of Louisiana, art. 288, &c.

LECTURE XXXI.

OF INFANTS.

(1.) When of age.

THE necessity of guardians results from the inability of infants to take care of themselves; and this inability continues, in contemplation of law, until the infant has attained the age of twenty-one years. The age of twenty-one is the period of majority for both sexes, according to the English common law, and that age is completed on the beginning of the day preceding the anniversary of the person's birth. The age of twenty-one is probably the period of absolute majority throughout the United States, though female infants, in some of them, have enlarged capacity to act at the age of eighteen. In Vermont and Ohio, females are deemed of age at the age of eighteen. Louisiana follows in this respect the common law period of limitation, though entire majority by the civil law, as to females as well as males, was not until the age of twenty-five; and Spain and Holland follow, as to males, the rule of the civil law. By the French civil code,

• Anon. 1 Salk. 44. 1 Ld. Raym. 480. Sir Robert Howard's case, 2 Salk. Rep. 625. Hamlin v. Stevenson, 4 Dana's Kentucky Rep. 597. State v. Carke, 3 Harr. Del. R. 557.

b9 Vermont Rep. 42. 79.

Inst. 1. 23. 1. Partidas on Obligations, 5. 11. 5. Institutes of the Civil Law of Spain, b. 1. tit. 1. ch. 1. sec. 3. Institutes of the Laws of Holland, by Vanden Linden, book 1. ch. 5. sec. 7. Code Civil, art. 888. 488. 1 Toullier, p. 153. Civil Code of Louisiana, art. 41. 93. The law of the domicil of birth governs the state and condition of the minor, into whatever country he removes, and his minority ceases at the period fixed by those laws for his majority. Barrera v. Alpuente, 18 Martin's Louisiana Rep. 69. This is the rule, as understood by many continental civilians. A person being a minor or of majority by the law of his native domicil, carries that condition with him wherever he goes. Huberus,

the age of full capacity is twenty-one years, except that twenty-five years is the majority for contracting marriage without paternal consent by the male, and twenty-one by the female. Code Civil, sec. 145. 488. Nor can infants do any act to the injury of their property, which they may not avoid, or rescind, when they arrive at full age. The responsibility of infants for crimes by them committed, depends less on

their *age, than on the extent of their discretion and *234 capacity to discern right and wrong.

(2.) Acts void or voidable.

Most of the acts of infants are voidable only, and not absolutely void; and it is deemed sufficient, if the infant be allowed, when he attains maturity, the privilege to affirm or avoid, in his discretion, his acts done, and contracts made in infancy. But when we attempt to ascertain from the books, the precise line of distinction between void and voidable acts, and between the cases which require some act to affirm a contract, in order to make it good, and some act to disaffirm it, in order to get rid of its operation, we meet with much contradiction and confusion. A late writer, who has compiled a professed treatise on the law of infancy, concludes, from a review of the cases, that the only safe criterion by which we can ascertain whether the act of an infant be void or voidable, is, "that acts which are capable of being legally ratified,

lib. 1. tit. 3. sec. 12. See, also, Boullenois and others, cited in Story on the Conflict of Laws, p. 52. 69, 70. But this rule is to be taken with very important qualifications. The state and condition of the persons, according to the law of his domicil, will generally, though not universally, be regarded in other countries as to acts done, or rights acquired, or contracts made, in the place of his native domicil; but as to acts, rights and contracts done, acquired or made out of his native domicil, the lex loci will generally govern in respect to his capacity and condition. If, for instance, a person be a minor by the law of his domicil until the age of twenty-five, yet, in another country, where twenty-one is the age of majority, he may, on attaining that age, make in such other country a valid contract. Male v. Roberts, 3 Esq. Rep. 163. Thompson v. Ketchum, 8 Johns. Rep. 189. Story on the Conflict of Laws, pp. 96, 97. 364. Saul v. His Creditors, 17 Martin's Louisiana Rep. 597. Burge's Com. on Colonial and Foreign Laws, vol. i. 103-134. In respect to the control of real property, the law of the domicil yields to the lex rei sita. This is an acknowledged and universal principle. The continental authorities are cited numerously and at large in the last work above mentioned, on the subject of minors and the law of majority.

are voidable only; and acts which are incapable of being legally ratified, are absolutely void." But the criterion here given does not appear to free the question from its embarrassment, or afford a clear and definite test. All the books are said to agree in one result, that whenever the act done may be for the benefit of the infant, it shall not be considered void, but he shall have his election, when he comes of age, to affirm or avoid it; and this, says Ch. J. Parker, is the only clear and definite proposition which can be extracted from the authorities. But we are involved in difficulty, as that learned judge admits, when we come to the application of this principle. In Zouch v. Parsons, it was held by the K. B., after a full discussion and great consideration of the case, that an infant's conveyance by lease and release, was voidable only; and yet Mr. Prestond condemns that deci*235 sion in the *most peremptory terms, as confounding all

distinctions and authorities on the point; and he says that Lord Eldon repeatedly questioned its accuracy. On the other hand, Mr. Binghame undertakes to show, from reason and authority, that the decision in Burrow is well founded; and he insists that all the deeds, acts and contracts of an infant, except an account stated, a warrant of attorney, a will of lands, a release as executor, and a conveyance to his guardian, are, in judgment of law, voidable only, and not absolutely void. But the modern as well as ancient cases, are much broader in their exception. Thus it is held, that a negotiable note, given by an infant, even for necessaries, is void;

& Treatise on Conveyancing, vol. ii. p. 249. Treatise on Abstracts of Title, vol. i. p. 324.

• Law of Infancy, ch. 2.

See his work, p. 34; and also his preface.

In Williams v. Moon, 11 Meeson & Welsby, 255, it was held that an account stated by an infant was not to be distinguished in principle from goods sold, and was voidable only. The old authorities were overruled.

h Swasey v. Administrator of Vanderheyden, 10 Johns. Rep. 38. Trueman v. Hurst, 1 Term Rep. 40. M'Crillis v. How, 3 N. H. Rep. 348. M'Mian v. Richmond, 6 Yerger, 1. Contra, Dubose v. Wheddon, M'Cord's Rep. 221. In Everson v. Carpenter, 17 Wendell, 419, and in Reed v. Bachellor, 1 Metcalf's Rep. 559, it was adjudged that the promissory note of an infant was merely voidable, and

and he is not liable for money borrowed, though applied to necessaries; and his acceptance of a bill of exchange is void;b and his contract as security for another, is absolutely void;c and a bond, with a penalty, though given for necessaries, is void ;d (1) It must be admitted, however, that the tendency of the modern decisions is in favour of the reasonableness and policy of a very liberal extension of the rule, that the acts and contracts of infants should be deemed voidable only, and subject to their election when they became of age, either to affirm or disavow them. If their contracts were absolutely void, it would follow, as a consequence, that *236 the contract could have no effect, and the party contracting with the infant, would be equally discharged. The doctrine of the case of Zouch v. Parsons, has been recognised as law in this country, and it is not now to be shaken. On

could be made available by a new promise after he was of age. See, also, to the same point, 1 Berton's N. B. Rep. 23, and that it is now the better doctrine.

Randall v. Sweet, 1 Denio, 460.

Williamson v. Watts, 1 Campb. N. P. 552.

• Curtis v. Pattin, 11 Serg. & Rawle, 305.

a Co. Litt. 172, a. recognised as being still the law by Bayley, J., in 3 Maule & Selw. 482.

• Wamsley v. Lindenberger, 2 Randolph's Rep. 478. Lord Mansfield, in Zouch v. Parsons, 3 Burr. Rep. 1804, held the law to have been truly laid down by Perkins, sec. 12, that "all such gifts, grants or deeds, made by an infant, which do not take effect by delivery of his hand, are void. But such gifts, grants or deeds, made by an infant by matter of deed, or in writing, which takes effect by delivery of his own hand, are voidable." Chancellor Jones, in Stafford v. Roof, 9 Cowen's Rep. 626, adhered to this distinction, and held, that manual delivery was requisite to render the infant's deed of land or chattels voidable only. I apprehend that the modern rule, as now understood, is not quite so precise.

f 1 Fonb. Tr. of Eq. 74. In Goodsell v. Myers, 3 Wendell's Rep. 479, and Dubose v. Wheddon, 4 M'Cord's Rep. 221, it was held that the note of an infant was voidable, and not void.

Ch. J. Ruffin, in Hoyle v. Stowe, 2 Dev. & Battle, 324, 325, expresses his disapprobation of the decision in Zouch v. Parsons, with much force of reasoning, and he says it is not received as settled law. But in Bool v. Mix, 17 Wendell's Rep. 119, it was adjudged that a deed of bargain and sale made by an infant, was like a feoffment with livery of seisin, voidable only, and not absolutely void. The

(1) What subjects of expenditure are necessaries, has been declared to be a question for the court; but whether any, and how much, were required by the infant, are questions for the jury. Tupper v. Cadwell, 12 Met. R. 559. Peters v. Fleming, 6 M. & Wils, R. 46.

An infant's release of a legacy has been held void. Langford v. Frey, 8 Humph. (Tenn.) R. 443.